TN can charge convicted DUI offenders for certain lab tests

On Thursday, Aug. 23, the Tennessee Supreme Court unanimously reversed the ruling of a lower court and said it is constitutional to make convicted DUI offenders pay for certain tests used to convict them.

The statute that was in question imposes a $250 fee if a breath, blood or urine test is used in a person’s conviction on DUI, vehicular assault, aggravated vehicular assault, vehicular homicide, simple possession or casual exchange of a controlled substance, reckless driving and aggravated vehicular homicide.

Attorney General Herbert H. Slatery III said he was pleased with the outcome of the decision in State of Tennessee v. Rosemary L. Decosimo. It reversed the February ruling from the Court of Criminal Appeals. More than 20 other defendants had joined the case with Decosimo.

The challenged statute earmarks the fees imposed to an “intoxicant testing fund,” and money in this fund doesn’t revert to the State’s general fund but instead remains available for appropriation to the Tennessee Bureau of Investigation as determined by the General Assembly.

Decosimo’s case argued that this gave TBI forensic scientists a personal and institutional incentive to produce blood alcohol test results that secure convictions, which would increase fees and funding for the TBI.

Slatery, however, said “the court pointed out that any financial incentive created by the law is far too remote to constitute a possible temptation for TBI forensic agents to falsify test results and generate fees.”

The court’s opinion noted that Decosimo also didn’t have an additional blood sample drawn for independent testing at her expense as allowed by law. Her blood alcohol as a driver was found to be at 0.16 percent (above the 0.08 percent limit) when she was arrested in the early morning hours of Aug. 18, 2012.

The opinion was written by Justice Cornelia A. Clark. In part, her opinion said the General Assembly could have found a better way to fund the testing operations and pointed out that this was done on May 21. But she said the statute didn’t deprive the defendant of due process.

One of Decosimo’s attorneys said he expects to appeal to the U.S. Supreme Court.